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NLRB Law Memo 01/26/2007
by Ross Runkel at LawMemo
NLRB Law Memo 01/26/2007
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 3 decisions.
Cadillac Asphalt Paving Co. and its alter ego or successor Cadillac Asphalt, L.L.C.(7-CA-46464; 349 NLRB No. 5) Novi, MI Jan. 16, 2007.
The Board affirmed the administrative law judge's conclusion that Respondent Cadillac Asphalt, L.L.C. (LLC) was a "perfectly clear" Burns successor to Respondent Cadillac Paving Co. (Paving), but it disagreed with the judge's findings that LLC and Paving were a single employer and that LLC was an alter ego of Paving. NLRB v. Burns International Security Services, 406 U.S. 272 (1972).
The Board noted that a single-employer analysis is appropriate only where, unlike here, two ongoing businesses are coordinated by a common master. In reversing the judge's alter ego finding, the Board acknowledged the substantially identical supervision and operations of the Teamsters unit under Paving and LLC and the substantially identical business purposes, equipment, premises, and customers of Paving and LLC. It explained however that this evidence did not outweigh the evidence showing separate ownership and control, the lack of identical management, and the lack of evidence to suggest that LLC was formed for other than legitimate business reasons. The Board therefore dismissed the allegations of unlawful conduct by Paving.
The judge found, with Board approval, that LLC violated Section 8(a)(5) and (1) of the Act by: (1) failing to continue in effect all the terms and conditions of employment of its predecessor, as set forth in the expired 1998-2003 Michigan Road Builders Association (MRBA) labor agreement by discontinuing health and welfare and pension contributions on behalf of unit employees; (2) bypassing Teamsters Local 247 and dealing directly with unit employees by offering to provide alternative health insurance coverage; and (3) failing and refusing to recognize and bargain with Local 247 as the representative of unit employees. LLC violated Section 8(a)(2) and (1) by threatening Teamsters-represented drivers with layoffs unless they transferred their union membership to either the Laborers or Operating Engineers, rendering assistance and support to the Laborers and Operating Engineers, and telling unit employee Patrick Raymo that he must transfer his union membership from the Teamsters to keep his job.
Members Schaumber and Kirsanow adopted the judge's finding that the General Counsel failed to establish that Respondent Paving was bound by the successor 2003-2008 MRBA labor agreement. The General Counsel relied on a 1986 power of attorney purportedly binding Paving indefinitely to contracts negotiated by the MRBA. Members Schaumber and Kirsanow decided that the General Counsel failed to authenticate the power of attorney. Member Walsh, dissenting on this issue, would find that the Respondents waived any objection to the power of attorney's authenticity, that the power of attorney bound Paving to the 2003-2008 agreement, and that LLC, as Paving's perfectly clear successor, violated Section 8(a)(5) by failing to continue in effect the terms and conditions of employment of the 2003-2008 MRBA agreement that existed when it took over Paving's operations. Members Schaumber and Kirsanow disagreed that the Respondents waived any authenticity objection by not timely asserting it.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Teamsters Local 247; complaint alleged violation of Section 8(a)(1), (2), and (5). Hearing at Detroit, June 28-29, 2004. Adm. Law Judge Lawrence W. Cullen issued his decision Dec. 16, 2004.
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P.S.K. Supermarkets, Inc. (29-CA-26862, et al.; 349 NLRB No. 6) Brooklyn, NY Jan. 19, 2007.
The Board found, contrary to the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by posting an overly broad rule that interfered with employees' right to wear union buttons, directing employees to wear union buttons inside their uniforms only, creating the impression of unlawful surveillance, and directing employees not to be seen speaking with union agents.
There were no exceptions to the judge's findings that the Respondent violated Section 8(a)(1) when: (1) Vice President Noah Katz coercively interrogated employee Luis Rodriguez in Nov. 2004; (2) Manager Tony Rosado coercively interrogated Rodriguez in March 2005; (3) Katz solicited employees' grievances in April 2005; (4) Managers Rosado and Sheryce Hodges asked employees to inform union organizers that they did not want representation; (5) Manager Hodges initiated two antiunion petitions and solicited employees to sign them; (6) Manager Kathy Mahoney snatched a union handbook and cards from Rodriguez; (7) Katz coercively interrogated a group of employees; and (8) Katz promised benefits to employees. No exceptions were filed to the judge's dismissal of the allegation that the Respondent violated Section 8(a)(1) by directing nonemployee union organizers to stop soliciting in the "shopping cart corral area."
The Board found it unnecessary to pass on the General Counsel's exceptions to, among others, the judge's failure to find that Manager Mahoney unlawfully interrogated employee Rodriquez on another occasion in March or April 2005 and to the judge's failure to find that Manager Mahoney participated in the unlawful conduct when Manager Hodges initiated two antiunion petitions and solicited employees to sign them.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Food and Commercial Workers Local 342; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn, Jan. 17-18, 2006. Adm. Law Judge Howard Edelman issued his decision Aug. 23, 2006.
***
Raley's Supermarkets and Drug Centers (32-CA-20049-1; 349 NLRB No. 7) Monterey, CA Jan. 19, 2007.
Chairman Battista and Member Schaumber dismissed the complaint, agreeing with the administrative law judge that the Respondent did not unlawfully fail to respond to requests for information from Food & Commercial Workers Local 839 in violation of Section 8(a)(5) and (1) of the Act. Member Liebman dissented.
This case arose from two grievances filed by the Union alleging that two unit employees had been harassed, discriminated and retaliated against, and arbitrarily transferred from the Respondent's store in Monterey, CA. In a July 18, 2002 letter to Union Secretary-Treasurer Debbie Willis, the Respondent's senior human resources manager, Chris Clark, reported that the Respondent had completed its investigation of both grievances and that "[b]ased on our investigation we feel that we have taken the appropriate action and therefore, the Company considers this matter closed." The Union's attorney requested that a board of adjustment be convened on the grievances and Willis made the first of two information requests. By letter dated July 29, 2002 to the Union's counsel, Matthew Ross, the Respondent's director of labor relations, David Cuesta, revealed general information about the Respondent's investigations and stated that "[n]ot one of the employees interviewed by Mr. Clark had made any allegations of being treated rudely, disrespectfully or unprofessionally in any way. . . . Otherwise, we believe the situation has been addressed and the matter closed." On Aug. 21, 2002, Ross wrote to Cuesta seeking additional information-the second of two information requests. Cuesta later told Willis that the grievances had been resolved and, accordingly, that the Respondent was not required to provide additional information.
Chairman Battista and Member Schaumber concluded that the Respondent provided the Union all of the relevant information in the Respondent's possession. They wrote:
Following the Union's first information request, the Respondent informed the Union that "[n]ot one of the employees" it had interviewed had complained of improper treatment. The Respondent therefore told the Union that "this matter [was] closed." Reading these statements together, it is apparent that the Respondent was saying that it had found no merit to the grievances. Moreover, it was clear not only from these statements, but also from the conspicuous absence of any remedial action by the Respondent affecting the grievants, that the Respondent found the grievances to lack merit.
Dissenting Member Liebman explained:
For a union to make an informed decision about taking a grievance to arbitration, it must know what action the employer has taken with respect to the grievance and why. If employers were not obligated to provide this essential information, unions would have no real option but to pursue every grievance-which would effectively shut down the grievance-arbitration process. The majority here invites that result by finding that the Respondent did not violate Section 8(a)(5) and (1) when it refused to inform the Union of the results of its investigation of the Union's grievances and the action it took with respect to those grievances.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Food & Commercial Workers Local 839; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Salinas on Aug. 5, 2003. Adm. Law Judge Jay R. Pollack issued his decision Oct. 27, 2003.
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NLRB Law Memo 01/13/2007
by Ross Runkel at LawMemo
NLRB Law Memo 01/13/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB seeks amicus briefs on employee use of employer's email system.
The Guard Publishing Co (Case 36-CA-8743-1)
Notice: http://www.nlrb.gov/shared_files/Press%20Releases/2006/R-2613.pdf
Briefs and other documents: http://www.nlrb.gov/nlrb/about/foia/FrequentlyRequestedDocuments.html
The NLRB is inviting amicus briefs (due February 9) in a case involving employee use of the employer's email system to communicate about union or other concerted, protected matters. The Board has scheduled a rare oral argument for March 27.
The Board is especially interested in answers to the following questions:
1. Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
3. If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
4. In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
5. Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?
6. How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
7. Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?
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NLRB Law Memo 01/09/2007
by Ross Runkel at LawMemo
NLRB Law Memo 01/09/2007
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 8 decisions.
NLRB - Staff summarized 8 decisions.
Basic Industries, Inc. (15-CA-17525, et al.; 348 NLRB No. 89) Baton Rouge, LA Dec. 18, 2006.
The Board affirmed the administrative law judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off employees Jorge Pinto and Oscar Madrid, discharging employee Jorge Chavez, and refusing to reinstate Norberto Hernandez following an unfair labor practice strike and discharging Hernandez because of his union and protected concerted activities.
In affirming the judge's dismissal of the allegations, the Board found that the General Counsel established that Pinto, Madrid, and Chavez engaged in union activity and that the Respondent had knowledge of that activity. However, it agreed with the judge that the General Counsel failed to meet his burden of establishing that the Respondent harbored antiunion animus. Turning to Hernandez, the Board concluded, as did the judge, that the General Counsel failed to prove any unfair labor practice that would support the complaint allegation that Hernandez was an unfair labor practice striker. Also, there is no credited evidence regarding the reasons why Hernandez engaged in the strike. Accordingly, the Board decided that the General Counsel failed to demonstrate that the strike constituted either union or other protected concerted activity.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Asbestos Workers Local 53; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baton Rouge, Jan. 30 and 31 and Feb. 1, 2006. Adm. Law Judge Keltner W. Locke issued his decision May 23, 2006.
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Electrical Workers IBEW Local 2326 (Vermont Telephone Co.) (1-CB-10497; 348 NLRB No. 91) Boston, MA Dec. 18, 2006.
In agreement with the administrative law judge, the Board dismissed the complaint allegations that the Respondent violated Section 8(b)(3) of the Act by failing and refusing to honor the Employer's request to execute a written contract embodying the complete agreement it had reached with the Employer on the terms and conditions of employment. The judge concluded that there was no meeting of the minds and since there was no meeting of the minds the Union did not violate the Act when it failed and refused to execute the collective-bargaining agreement sent to it by the Employer, which contained the language that was in the 2001-2004 agreement, but not in the tentative agreement signed off on by both parties on Oct. 27, 2004.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Vermont Telephone Co.; complaint alleged violation of Section 8(b)(3). Hearing at Boston on March 28, 2006. Adm. Law Judge Martin J. Linsky issued his decision July 24, 2006.
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Five Star Manufacturing, Inc. (17-CA-22626, et al.; 348 NLRB No. 94) Crane, MO Dec. 26, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee David Tanksley on Feb. 11, 2004 and by discharging him for a second time on April 26, 2005; violated Section 8(a)(3), (5), and (1) by confiscating employees' keys to its facility and changing employees' work schedules on Feb. 12, 2004; violated Section 8(a)(3), (4), and (1) by reassigning Tanksley to different and more difficult work on April 19, 2004; and violated Section 8(a)(5) and (1) by continuing to award or deny discretionary bonuses and vacation pay after Teamsters Local 245's certification.
The Board amended the judge's recommended narrow cease-and-desist order, finding that a broad order is appropriate despite the fact that the Respondent does not have a prior history of violations of the Act. It focused on the egregious and widespread nature of the Respondent's misconduct, saying: "The mere fact that the Respondent has no prior history of violations does not, in and of itself, undermine the necessity for a broad order."
(Members Schaumber, Kirsanow, and Walsh participated.)
Charges filed by Teamsters Local 245; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Springfield, Nov. 29-30 and Dec. 1, 2005. Adm. Law Judge John H. West issued his decision May 4, 2006.
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Morris Healthcare & Rehabilitation Center, LLC, and Prism Healthcare Group, Inc. (13-CA-42882; 348 NLRB No. 96) Morris, IL Dec. 29, 2006.
The Board concluded, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by telling employees or job applicants that it would operate with no union when it was obligated to recognize and bargain with AFSCME Local 3903 on behalf of members of the bargaining unit and asking job applicants about their views of the Union or any other labor organization.
In affirming the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally setting initial terms and conditions of employment upon taking over the operation of a nursing home from a predecessor employer, the Board relied solely on the judge's finding that the Respondent was a "perfectly clear" successor and was not privileged to set initial terms and conditions of employment. See Spruce Up Corp., 209 NLRB 194, 195 (1975), enfd. per curiam 529 F.2d 516 (4th Cir. 1975).
Accordingly, the Board found it unnecessary to pass on the judge's additional finding that the Respondent was equitably estopped from setting initial terms because of its coercive statements to employees that it would operate nonunion. See Advanced Stretchforming International, 323 NLRB 529 (1997), enfd. in part on other grounds, remanded in part 208 F.3d 801 (9th Cir. 2000), amended and superseded on rehearing and enfd. in relevant part 233 F.3d
1176 (9th Cir. 2000), cert. denied 534 U.S. 948 (2001), remanded by the Board 336 NLRB 1153 (2001). Any such finding would not materially affect the remedy in this case. As requested by the Charging Party, however, the Board corrected the judge's inadvertent attribution of the coercive statements to Kathy Minor, when in fact they were made by Alma Woods and Suzanne Day.
The Board modified the judge's recommended Order to conform to the violations found and its standard remedial language, and modified the unit description in the Order to reflect the unit description alleged in the complaint and admitted by the Respondent in its answer.
(Members Liebman, Kirsanow, and Walsh participated.)
Charge filed by AFSCME Local 3903; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, Feb. 6-7, 2006. Adm. Law Judge Michael A. Rosas issued his decision May 30, 2006.
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Operating Engineers Local 150 (13-CD-751; 348 NLRB No. 97) Markham, IL Dec. 29, 2006.
The Board decided that employees of Royal Components, Inc. represented by Teamsters Local 786, rather than those represented by Operating Engineers Local 150, are entitled to drive the material delivery trucks with hoisting equipment attached and to unload the materials with those trucks at any place on the Yorkville, IL or Elgin, IL jobsites as directed by the contractors' supervisors. The Board relied on the factors of collective-bargaining agreements, employer preference, current assignment and past practice, industry practice, relative skills and training, and economy and efficiency of operations.
Royal Components, Inc. sought a broad award that encompassed all of its jobsites. The Board found however that the requirements for a broad award have not been satisfied. It noted that the Employer failed to present any evidence that the disputed work in this case is likely to be a continuous source of controversy or that Local 150 has a proclivity to engage in unlawful conduct to acquire the disputed work.
The Board advised that the Employer's request for a 10(j) injunction should be brought to the Regional Director, not the Board under NLRB procedures.
(Members Schaumber, Kirsanow, and Walsh participated.)
***
Park Maintenance, Palisades Maintenance and Park View Towers, alter egos (22-CA-26709, 27008; 348 NLRB No. 98) West New York, NJ Dec. 29, 2006.
The Board affirmed the administrative law judge's findings that Respondent Park Maintenance is the alter ego and successor of Respondent Palisades Maintenance; that Respondents Park View Towers, Park Maintenance, and Palisades Maintenance constitute a single employer; that as the alter ego of and single employer with Palisades, Park Maintenance is bound by the collective-bargaining agreement entered into by Palisades and Teamsters Local 11; and that the Respondents violated Section 8(a)(5) and (1) of the Act by certain conduct.
The judge found that the Respondents violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union, refusing to execute the memorandum of agreement, which is effective from June 1, 2004 to Dec. 31, 2007, refusing to give effect to and apply the terms of the memorandum of agreement, and transferring unit employees from the Northern New Jersey Teamsters Benefit Pan to the plan maintained by Park View Towers without offering to bargain with the Union and without the Union's consent. No party excepted the judge's findings that the Respondents violated Section 8(a)(5) and (1) by refusing to recognize the Union since Aug. 6, 2004, and by transferring employees from the union health plan to a different plan in Sept. 2004 without offering to bargain and without the Union's consent.
In affirming the judge's alter ego finding, Chairman Battista adhered to his position that the General Counsel must show, among other things, an intent to avoid legal obligations under the Act in order to prove alter ego status. See Crossroads Electric, Inc., 343 NLRB 1502 at fn. 2 (2004), enfd. 178 Fed. Appx. 528 (6th Cir. 2006). The Chairman noted however that the Respondents did not assert this contention and accordingly, he affirmed the finding of alter ego status without reaching the motive for creation of Respondent Park Maintenance.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Teamsters Local 11; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on March 21, 2006. Adm. Law Judge Steven Davis issued his decision May 18, 2006.
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Southern Nuclear Operating Co., et al. (10-CA-32861, et al.; 348 NLRB No. 95) Birmingham, AL Dec. 29, 2006.
The administrative law judge found, and the Board agreed, that Respondents Southern Nuclear Operating Co., Alabama Power Co., Savannah Electric and Power Co., and Gulf Power Co. violated Section 8(a)(5) and (1) of the Act by unilaterally changing bargaining unit employees' future retiree health insurance benefits and retiree welfare life benefits without providing notice of the proposed changes and adequate opportunity for the Unions to bargain about the changes.
Member Schaumber did not participate in Georgia Power Co., 325 NLRB 420 (1998), enfd. mem.176 F.3d 494 (11th Cir. 1999), cert. denied 528 U.S. 1061 (1999), and Trojan Yacht, 319 NLRB 741 (1995), which are cited in the judge's decision, and expressed no view as to whether the cases were correctly decided. He would find that the judge's decision was correct under either a contract coverage or a waiver analysis.
The Board found that the judge's recommended general affirmative bargaining orders are not necessary to remedy the Respondents' unlawful unilateral changes in terms and conditions of employment and modified his recommended Order accordingly. See, e.g., Eugene Iovine, Inc., 328 NLRB 294 (1999), enfd. 1 Fed. Appx. 8 (2d Cir. 2001).
(Members Schaumber, Kirsanow, and Walsh participated.)
Charges filed by Electrical Workers IBEW System Council U19, Electrical Workers IBEW Local 1208, and Electrical Workers IBEW Local 1055; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Birmingham on May 3, 2002. Adm. Law Judge Pargen Robertson issued his decision Oct. 17, 2002.
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The Wackenhut Corp. (5-CA-31927; 348 NLRB No. 93) Takoma Park, MD Dec. 19, 2006.
The Board affirmed the administrative law judge's findings that (a) the Respondent violated Section 8(a)(1) of the Act by making statements at a Feb. 26, 2004 meeting that created the impression of surveillance and that conveyed to employees that they would lose their jobs if they unionized, and (b) that the Respondent did not violate the Act at this meeting by stating to employees that their activity would be monitored by cameras and that any employee that was
"unionizing on or near your post" would be physically removed.
Chairman Battista and Member Liebman adopted the judge's finding that Project Manager Alexander Steele's statement at the meeting to the effect that the International Monetary Fund (IMF) contract prohibited unions violated Section 8(a)(1). Member Schaumber disagreed. While there was testimony that Steele said that the Respondent would not "formulate a union," he noted that the judge did not discuss this testimony, nor is the statement equivalent to saying "the IMF contract prohibited unions."
On another alleged violation, the Board reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(1) by engaging in surveillance of union activities on March 3, 2004.
Union organizer Elizabeth O'Connor and four other union organizers had assembled on the sidewalk outside the IMF headquarters to distribute union literature to the Respondent's employees. A few minutes after their arrival, Respondent's assistant shift supervisor Ware exited the building. O'Connor approached Ware and asked if he worked for the Respondent. Ware replied that he would not talk to O'Connor, but he continued to stand 2-3 feet away from her with a walkie-talkie in his hand. O'Connor then asked Ware why he continued to stand there, and Ware replied, "I just want to keep you company". Steele and Milling exited the building about 5-10 minutes later and stood 2-3 feet away from O'Connor. At O'Connor's request, the two identified themselves to her, and O'Connor took their pictures. Ware, Steele, and Milling remained for a few more minutes and then returned into the building. O'Connor and the other organizers left the area.
The Board found that the judge erroneously relied on NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 94-95 (1995). In Town & Country Electric, the Supreme Court held that paid union organizers are statutory employees when they apply for a job with, or are employed by, an employer. It noted that neither O'Connor nor the other union organizers were employees of, or applicants for jobs with, the Respondent and, therefore the Respondent's conduct did not constitute surveillance of the Respondent's employees. In addition, the Board noted, and the judge acknowledged, that there is no evidence that any of the Respondent's employees were in the vicinity of the area where the incident occurred.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Service Employees; complaint alleged violation of Section 8(a)(1). Hearing at Washington, DC, Oct. 4-6, 2004. Adm. Law Judge Michael A. Rosas issued his decision April 20, 2005.
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NLRB Law Memo 01/08/2007
by Ross Runkel at LawMemo
NLRB Law Memo 01/08/2007
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 7 decisions.
Marine Spill Response Corp. (21-CA-36663; 348 NLRB No. 92) Long Beach, CA Dec. 18, 2006.
In affirming the administrative law judge's finding, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Inlandboatmen's Union of the Pacific ILWU as the exclusive collective-bargaining representative of its employees in the appropriate unit.
There were no exceptions to the judge's finding that at the time of the hearing, the Respondent had effectively merged its Carson facility with its Long Beach facility. No exceptions were filed to the judge's application of the presumption in favor of the appropriateness of a single-facility unit in concluding that the Carson-Long Beach facility is an appropriate bargaining unit. In the absence of exceptions, Members Schaumber and Walsh found it unnecessary to address Chairman Battista's discussion of the judge's analysis.
Chairman Battista joined his colleagues in affirming the judge's finding that a two-facility unit (one at Carson and one at Long Beach) is an appropriate unit, but he relied on a different reading of the judge's analysis. The judge found that each facility was presumptively an appropriate unit, but the presumption was overcome by a showing that a two-facility unit is appropriate. In response, Chairman Battista noted that a single-facility presumption exists only when a union seeks a single-facility unit, and the Union does not do so here. Thus, the issue is whether a two-facility unit is an appropriate unit. In concluding that it is, Chairman Battista relied on the significant operational integration, employee interaction, and employee interchange between the Carson facility and the Long Beach facility as well as the lack of such significant integration, interaction, and interchange between the two facilities and other Respondent facilities in California or nationwide.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Inlandboatmen's Union of the Pacific ILWU; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, Nov. 79, 2005. Adm. Law Judge John J. McCarrick issued his decision Feb. 5, 2006.
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Day Automotive Resources, Inc., d/b/a Day Automotive Group and Centennial Chevrolet, Inc., a Single Employer (6-CA-34843, 34895; 348 NLRB No. 90) Uniontown and Monroeville, PA Dec. 15, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by conditioning negotiations for a new collective bargaining agreement on acceptance by Steel, Paper and Forestry Workers Local 13836-03 of its proposal concerning health care coverage, refusing to meet and bargain with the Union, and unilaterally changing the unit employees' terms and conditions of employment by implementing its final contract offer when there was no impasse in bargaining.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Steel, Paper and Forestry Workers Local 13836-03; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, March 7-9, 2006. Adm. Law Judge Richard A. Scully issued his decision June 9, 2006.
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National Grid USA Co., Inc. (1-CA-42703; 348 NLRB No. 88) Westboro, MA Dec. 11, 2006.
In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to provide relevant requested information to Utility Workers Locals 310, 317, 322, 329, 330, and 654 since June 1, 2005, in the form of copies of the request for proposals for the contracting out of excess collection of delinquent customer accounts; and since July 1, 2005, failing to provide copies of all contracts
between Respondent and the winning bidder(s) concerning the excess collection of delinquent customer accounts.
Members Schaumber and Kirsanow modified the judge's recommended Order to delete the language directing the Respondent to post the "Notice to Employees" on its internet website. Although no exceptions were filed to this remedial provision, they reasoned that the Board has discretion to address remedial matters in the absence of exceptions. Indiana Hills Care Center, 321 NLRB 144 fn. 3 (1996). Regarding the matter in this case, Members Schaumber and Kirsanow found it appropriate to exercise that discretion. They noted that in Nordstrom, Inc., 347 NLRB No. 28 (2006), a panel majority denied a request for electronic notice-posting, citing International Business Machine Corp., 339 NLRB 966 (2003).
In Nordstrom, the Board based its decision on an absence of evidence that the employer customarily communicated with its employees through electronic means. It stated that it was open to considering the merits of a proposed modification to the standard notice-posting language in a particular case if the General Counsel or a charging party (1) adduces evidence at an unfair labor practice hearing demonstrating that a respondent customarily communicates with its employees electronically, and (2) proposes such a modification to the judge in the unfair labor practice proceeding. Here, the majority found that the first of these prerequisites for considering electronic posting on the merits is missing and there is no record that the Respondent customarily communicated with its employees electronically.
In accord with her dissent in Nordstrom, Member Liebman found that the Board's current notice-posting language, which unequivocally references all places where notices to employees customarily are posted, is sufficiently broad to encompass new communication formats, including electronic posting, which is now the norm in many workplaces. She found no need to request an evidentiary hearing before the Board rules, as a matter of general policy, that the current posting language encompasses electronic posting where appropriate. In this case, Member Liebman observed that, by failing to except to the electronic posting provision, the Respondent effectively conceded that there is a factual predicate for requiring such a provision.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Utility Workers Locals 310, 317, 322, 329, 330, and 654; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on Jan. 31, 2006. Adm. Law Judge Eric M. Fine issued his decision June 14, 2006.
***
Southwest Regional Council of Carpenters (21-CD-658; 348 NLRB No. 87) Los Angeles, CA Dec. 13, 2006.
Relying on the relevant factors of collective-bargaining agreements, employer preference and past practice, and economy and efficiency of operations, the Board determined that employees of Standard Drywall, Inc. represented by Southwest Regional Council of Carpenters are entitled to perform the work in dispute: plastering work at the public works projects in the 12 Southern California counties. Plastering work is defined as follows:
A. Corner beads when stuck on.
B. All interior or exterior plastering using gypsum, Portland Center plaster (excepting cement bases 6 inches (6") or lower), stucco, radian heat fill material, marble-crete, imitation brick or masonry, embedding of chips and stones, the finishing of same and mortars applied by the normal methods used by plasterers.
C. The waterproofing of plaster including such material as Thoroseal and Ironite.
D. The bonding and scratching of all ceilings and walls to receive terrazzo and tile; and bonding, scratching and borrowing to receive thin set tile.
E. The sticking, nailing and screwing on of all plaster caps and ornaments.
F. The application of bond coat plasters, bond dash coats and bonding agents to which plaster is to be applied regardless of tools used, method of application, color of material or type of base to which it is applied.
G. The application of materials used for contract fireproofing, fireproofing, acoustical finish, or decorative finish.
H. All moldings run in place. The making of all templates and the horsing of molds for interior and exterior work. The sticking in place of all staff work and plaster enrichments.
I. The initial clearing of areas immediately adjacent to the plastering and concurrent with the plastering operation.
J. Plasterers shall have the autonomy governing the mixing and applying of all materials used for plaster patching.
K. The installation of Exterior Insulation Finish Systems (EIFS), starting with the foam.
L. The carving or texturing of 'positive' rock and other theme work created from gypsum, Portland cement, or acrylic plaster.
(Chairman Battista and Members Liebman and Schaumber participated.)
The Budd Co. (9-CA-38113; 348 NLRB No. 85) Shelbyville, KY Dec. 6, 2006
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The Budd Co. (9-CA-38113; 348 NLRB No. 85) Shelbyville, KY Dec. 6, 2006.
The Board reversed the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a rule banishing radios from the plant. Contrary to the judge, the Board found that the Respondent was privileged by the collective-bargaining agreement to unilaterally make and enforce the radio ban. It also found that the contract provided Auto Workers Local 2383 with specific grounds and clear procedures to challenge the proposed rule, and by agreeing to the provision, the Union clearly and unmistakably waived its right to request bargaining over the Respondent's action.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Auto Workers Local 2383; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville on May 23, 2001. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Dec. 20, 2001.
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Reliable Disposal, Inc. (7-CA-46874, 47389; 348 NLRB No. 83) Stevensville, MI Dec. 4, 2006.
The administrative law judge found, and the Board agreed, that the Respondent committed various violations of Section 8(a)(3) and (1) of the Act during Teamsters Local 7's organizing campaign, including discharging Jeff Winslett, interrogating and threatening employees, and soliciting and promising to remedy employee grievances because of the Union.
Members Schaumber and Kirsanow reversed the judge's finding that the Respondent's layoffs of drivers John Tomlinson and Dan Kuhens were attributable to their union activities in violation Section 8(a)(3) and (1). They concluded that there is insufficient proof that the Respondent was aware of Tomlinson's and Kuhens' union activities. Members Schaumber and Kirsanow also reversed the judge's finding that the Respondent violated Section 8(a)(1) when, on three occasions, Operations Manager Fuller told employee Winslett that he (Fuller) would lose his job if the Union came in.
Member Liebman, dissenting from her colleagues' reversals, reasoned that given the Respondent's numerous unfair labor practices, the Respondent harbored animus against employees' union activity. She observed that the Respondent was well aware that the Union's campaign was spearheaded by the drivers, and that the stated reason for the layoffs of Tomlinson and Kuhens-the anticipated loss of work-was pretextual, which supports an inference of knowledge. Turning to Fuller's statements that he would lose his job in the event of unionization, Member Liebman wrote that Fuller's threats clearly served to reinforce the Respondent's unlawful message that if the Union came all those who worked for the Respondent would lose their job. She would therefore find Fuller's threat coercive and violative of the Act.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charges filed by Teamsters Local 7; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Stevensville on Sept. 22, 2004. Adm. Law Judge Pargen Robertson issued his decision March 8, 2005.
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Team Clean, Inc. (37-CA-6905-1; 348 NLRB No. 86) Honolulu, HI Dec. 7, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with UNITE HERE! Local 5 by failing to furnish the Union in a timely fashion with requested information that is relevant to fulfilling its role as the collective-bargaining representative of the unit employees. Specifically, the Respondent unlawfully delayed in providing the Union with information concerning bargaining
unit members' current addresses and telephone numbers, rates of pay, and week work schedules.
The Respondent argued that the parties' dispute over the Union's information request should be deferred to arbitration. The judge reasoned that Board precedent remains that refusals to provide information are not deferred under Collyer Insulated Wire, 192 NLRB (2002) and, denied the Respondent's request for deferral. In a footnote, the Board noted its consistent policy not to defer information disputes to arbitration. See, e.g., Shaw's Supermarkets, 339 NLRB 871 (2003); United Technologies Corp., 274 NLRB 504 (1985); General Dynamics Corp., 268 NLRB 1532 (1984).
Members Schaumber and Kirsanow viewed the information request at issue to be encompassed by the parties' arbitration clause and would defer the request to arbitration. In the absence of a majority to reverse Board precedent, however, they agreed to apply current Board law and adopt the judge's decision.
Chairman Battista noted that under Collyer, a fundamental prerequisite for deferral to arbitration is that the issue be arbitrable. He noted that the arbitration clause in this case covers disputes "concerning the interpretation or application of, or compliance with provisions of this Agreement." The agreement contains no contractual provision as to information. Thus, the Chairman would not defer because the informational dispute is not arbitrable.
Chairman Battista did not pass on whether the informational allegation would be deferrable if it were covered by the arbitration clause. He recognized that there is Board law stating that information allegations are not deferrable even if covered by a contractual arbitration clause. In an appropriate case, he would reconsider that doctrine.
(Full Board participated.)
Charge filed by UNITE HERE! Local 5; complaint alleged violation of Section 8(a)(1) and (5). Case tried by telephone conference call on Dec. 13, 2005. Adm. Law Judge William G. Kocol issued his decision Dec. 21, 2005.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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